STEPHANIE KAY GOSSETT v. DONALD STEVEN GOSSETT
Annotate this Case
Download PDF
RENDERED: October 20, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001720-MR
STEPHANIE KAY GOSSETT
v.
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 95-CI-00550
DONALD STEVEN GOSSETT
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE: Stephanie Kay Gossett has appealed from an order
of the Barren Circuit Court entered on June 12, 1998, which
concluded that Donald Steven Gossett is entitled to a reduction
of his child support obligation as a matter of law.
We vacate
the order as entered and remand with directions that the trial
court resolve the factual issues bearing on the issue of Donald’s
motion for a reduction in child support.
The Gossetts were married in 1984.
The union produced
two children: Whitney was born November 17, 1987; Derek was born
January 13, 1995.
The parties separated in late 1995, and their
marriage was dissolved on August 12, 1996.
The parties agreed on
the resolution of all the issues arising from their twelve-year
marital relationship with the exception of the appropriate amount
of Donald’s child support obligation.
For a considerable period
prior to the parties’ separation, Donald worked full-time at R.R.
Donnelley & Sons and he also worked part-time at a second job for
Barren-Metcalfe Ambulance Service.
Donald would not agree to pay
child support calculated by using both of his incomes, and as a
result the issue of the amount of his child support obligation
was litigated before the domestic relations commissioner.
On
August 23, 1996, an order was entered setting child support at
$200.13 per week ($867.24 monthly), which amount reflected
Donald’s total monthly income from both jobs of $3,555.
In April 1998, Donald moved for a reduction of his
child support obligation.
At the hearing conducted on May 11,
1998, Donald testified that his income had decreased over 40%
since the 1996 hearing, to $2,121 per month.
He attributed the
decrease in his income to the fact that he had voluntarily quit
his job with the ambulance service and because he was not working
as much overtime as before at his primary job.
He justified
quitting his part-time job in order to have more time with his
family, although he acknowledged, and the record clearly
demonstrates, that he was not having regular visitation with his
children.
In its order, the trial court found and concluded as
follows:
1.
The parties were divorced on or about
August 13, 1996 in Barren Circuit Court. The
parties have two children under the age of
eighteen. At the time of the divorce
-2-
[Donald] was employed at R. R. Donnelley &
Sons, Co., and was working all the overtime
that he could and was also working on a parttime basis with the Barren-Metcalfe Ambulance
Service and was also doing some other work of
a self-employment nature.
2.
[Donald’s] income at the present time is
$2,121.43 per month and his only source of
income is through his employment at R.R.
Donnelley & Sons, Co. This is full-time
employment and [Donald] could not reasonably
find work with greater income potential
considering his education, work experience,
and the community in which he lives. The
Court finds that [Donald] is not required by
law to maintain more than one job or to work
to the exclusion of any other activities of
life.
3.
[Donald’s] income is $2,121.43 per
month. [Stephanie’s] income is $1,278.71 per
month. Statutory guidelines provide that
child support should be set at $588.38 per
month. . . .
. . .
2.
KRS1 403.212 provides “income” is actual
gross income of a parent if employed to full
capacity. This Court concludes that a fulltime job at R. R. Donnelley and Sons, Co.,
constitutes full employment. The statutes do
not require a person to work at a second job.
In this appeal, Stephanie argues that considering
Donald’s history of working at two jobs and all the overtime he
could get to support his family, the trial court erred in failing
to determine that he was voluntarily underemployed as
contemplated by the statutes relating to child support for
purposes of addressing his motion for modification.
She further
insists that the trial court abused its discretion in reducing
Donald’s support obligation where the evidence is uncontradicted
1
Kentucky Revised Statutes.
-3-
that Donald willfully and voluntarily reduced his ability to earn
income.
Donald argues that the trial court was “able to judge
for itself [his] credibility and sincerity [ ], as well as the
reasonableness of his actions, and found that [he] was not
voluntarily underemployed.”
Elsewhere in his brief, Donald
states that whether he is voluntarily underemployed is a “factual
determination” which the trial court resolved in his favor.
We agree that whether a child support obligor is
voluntarily underemployed is a factual question for the trial
court to resolve.
Certainly, the findings of a trial court
cannot be disturbed by this Court if they are support by
substantial evidence.2
However, as we view the order from which
this appeal has been taken, the trial court did not make a
factual determination, but rather held, as a matter of law, that
a child support obligor could not be required to work at two jobs
and, for that reason alone, refused to impute to Donald any
income other than his salary of R.R. Donnelley.
The statutory provisions relevant to this appeal
provide as follows:
“Income” means actual gross income of
the parent if employed to full capacity or
potential income if unemployed or
underemployed.3
If a parent is voluntarily unemployed or
underemployed, child support shall be
calculated based on a determination of
potential income, except that a determination
2
Kentucky Rules of Civil Procedure 52.01.
3
KRS 403.212(2)(a).
-4-
of potential income shall not be made for a
parent who is physically or mentally
incapacitated or is caring for a very young
child, age three (3) or younger, for whom the
parents owe a joint legal responsibility.
Potential income shall be determined based
upon employment potential and probable
earnings level based on the obligor’s or
obligee’s recent work history, occupational
qualifications, and prevailing job
opportunities and earnings levels in the
community. A court may find a parent to be
voluntarily unemployed or underemployed
without finding that the parent intended to
avoid or reduce the child support
obligation.4
The Kentucky child support guidelines
may be used by the parent, custodian, or
agency substantially contributing to the
support of the child as the basis for
periodic updates of child support obligations
and for modification of child support orders
for health care. The provisions of any
decree respecting child support may be
modified only as to installments accruing
subsequent to the filing of the motion for
modification and only upon a showing of a
material change in circumstances that is
substantial and continuing.5
The purpose of the statutes and the guidelines relating
to child support is to secure the support needed by the children
commensurate with the ability of the parents to meet those needs.
“Both our statutory scheme and our case law demand that whenever
possible the children of a marriage should be supported in such a
way as to maintain the standard of living they would have enjoyed
had the marriage not been dissolved.”6
KRS 403.212 mandates that
earnings and income from all sources be considered when setting
4
KRS 403.212(2)(d).
5
KRS 403.213(1).
6
Stewart v. Madera, Ky.App., 744 S.W.2d 437, 439 (1988).
-5-
child support.
While we agree that it is generally not
appropriate to impute additional income to a parent already
working a full 40-hour week, we disagree with the trial court’s
resolution of the issue as one of law.
Rather, we believe that
the issue is one of fact as reflected in the following reasoning
employed by the Virginia Court of Appeals when confronted with
the issue:
[A]s a general rule a court should not impute
to a person income from more than one job.
However, this is not a rule to be applied in
all cases as a matter of law. Depending upon
the circumstances peculiar to each case,
particularly where there is a history of a
spouse having had two jobs, the trial court
may find it appropriate to consider imputing
to a spouse income from more than one job.
The court should consider the previous
history of employment, the occupational
qualifications, the extent to which the
parent may be under employed in the primary
job, the health of the individual, the needs
of the family, the rigors of the primary job
and the second job, and all other
circumstances.7
Cochran, supra concerned the initial setting of child
support.
In the case sub judice, Donald was seeking a
modification based on his voluntary reduction in income.
It is
incumbent upon the trial court, before addressing the issue in
the context of the above factors, to make findings with respect
to Donald’s entitlement to a modification in the first instance.
Stephanie argues that a support obligor who voluntarily reduces
his income is not entitled to seek modification.
Certainly a
parent may not “voluntarily impoverish himself in order to avoid
7
Cochran v. Cochran, 14 Va.App 827, 419 S.E.2d 419, (1992).
-6-
his support obligation.”8
Indeed, even some involuntary changes
in circumstances are not sufficient grounds for modification if
the change is the result of the obligor’s voluntary action.9
However, in the case sub judice, the trial court found that
Donald continues to work full-time despite his voluntary
reduction in hours.
Thus, we are unwilling to hold, as Stephanie
suggests, that Donald is not entitled to a reduction in his child
support as a matter of law.
The trial court could find from the evidence that
Donald quit his second job and reduced his overtime primarily to
reduce his child support obligation.
A “change in circumstances”
contemplated by KRS 403.213(1) does not include voluntary changes
made for the primary purpose to reduce the support owed.
“Courts
should not--and do not--view the freedom to deprive family
members of support because of personal animosity or miserliness
as one that deserves consideration or protection.”10
Thus, on
remand the trial court should make explicit findings concerning
the circumstances surrounding Donald’s reduction in his income.
On remand, the trial court should determine whether Donald is
8
Commonwealth, ex. rel. Marshall v. Marshall, Ky.App., 15
S.W.3d 396, 401 (2000). See also Downey v. Rogers, Ky.App., 847
S.W.2d 63, 65 (1993) (support obligor’s inability both to meet
his own needs and pay child support because of consumer debt is
not a basis for a reduction in child support).
9
Marshall, supra (incarcerated support obligor held to be
voluntarily unemployed despite inability to obtain employment).
10
Becker, Spousal and Child Support and the “Voluntary
Reduction of Income” Doctrine, 29 Conn.L.Rev. 647, 658 (1997).
-7-
entitled to a modification by using factors similar to those
outlined in Cochran, supra.11
Accordingly, the judgment is vacated and the matter is
remanded for further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
William Thomas Klapheke, III
Glasgow, KY
Robert M. Alexander
Glasgow, KY
11
The test is similar to the one set forth in Barbarine v.
Barbarine, Ky.App., 925 S.W.2d 831 (1996), which concerns a
motion to reduce maintenance predicated upon the early retirement
of the obligor.
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
